Transparency in California

Wednesday, July 31, 2019 at 9:39 pm | כ"ח תמוז תשע"ט

Wednesday, July 31, 2019 at 9:39 pm | כ"ח תמוז תשע"ט

“States have a legal and moral duty to do everything in their power to ensure leaders seeking the highest offices meet minimal standards, and to restore public confidence,” said California Gov. Gavin Newsom as he signed a law Tuesday requiring presidential candidates to release their tax returns to appear on the state’s primary ballot.

The law has near zero prospects of surviving a challenge in the courts, because it will likely be found unconstitutional, for the simple reason that the U.S. Constitution does not require anyone to release their tax returns in order to run for president, and states cannot invent requirements on their own.

Why, then, does the governor of the most populous state in the Union affix his signature to such a frivolous document?

The answer to that is not so silly. California’s “Presidential Tax Transparency and Accountability Act” exhibits transparency of another kind, namely the transparent motivation to target President Donald Trump, even though it does not mention him by name.

Newsom tweeted his real views back in the 2016 campaign: “Folks think Donald Trump is avoiding tax release because he pays a very low rate. I think it’s because his finances are a house of cards.”

The president has, since 2015, refused to open his tax returns to public scrutiny, and the Democrats hope to get at that information — the confidentiality of which is protected by law — to embarrass the president, if they cannot find him guilty of any crime; to ensnare him in yet another legal battle, even if they have no hope of winning anything in court.

As Jessica Millan Patterson, chairwoman of the California Republican Party, told NPR: “Democrat leadership in this state continues to put partisan politics first — a fact made obvious by Gov. Newsom’s insistence here to waste time and taxpayer money to fight a losing legal battle.”

But beware the moralist in politics. Especially when the morality is politically so well-timed, as in this case, when Newsom signed the bill on the day of the Democratic presidential debates.

In 2017, when then-Gov. Jerry Brown, also a Democrat, vetoed a similar bill, he warned of a “slippery slope” that could be as dangerous to Democrats as Republicans.

“Today we require tax returns, but what would be next?” he wrote in his veto message. “Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”

Richard L. Hasen, an election law professor, in the University of California at Irvine, told the Los Angeles Times: “If you think of this purely as a political matter and not a legal matter, what could a Republican legislature in a swing state do to hurt a Democratic presidential candidate’s chance to get on the ballot?” said. “That’s really the Pandora’s box.”

But anti-Trumpism is a political-cultural phenomenon above mere partisanship. Now that Newsom has shown it can be done, at least on paper, there will be no shortage of enthusiasts in blue states around the country.

Moving in a similar direction, New York has passed a law giving congressional committees access to Trump’s state tax returns. Last week, the president sued to stop the House of Representatives from obtaining a copy of his New York state returns.

Apparently unfazed, 10 states are working on bills that would force Mr. Trump to release anywhere from one to 10 years of tax returns to qualify for a state ballot. Proposals from five states — Hawaii, Illinois, New Jersey, Rhode Island and Washington — have already cleared one chamber this year, according to records cited by the Sacramento Bee from the National Conference of State Legislatures’ Election Legislation Database.

Will this legislation hurt Trump’s chances for re-election?

If the courts don’t declare it unconstitutional (yes, it might well go to the Supreme Court), Mr. Trump would be kept out of the Republican primaries in California. However, since there isn’t any serious challenger on the horizon within the party, it looks to be irrelevant, and he could thumb his nose at his critics, as he is wont to do.

As he said before, in a May 2016 tweet, he did not disclose his tax returns, and “the voters didn’t care.”

But this time the Democrats may hammer at the issue harder, betting that the debate it opens up will hurt him in the general election, which is the real point of this exercise.